COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated. Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April.

There is no Congressional authority for the H-1B lottery. One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed. This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal.

The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot. As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.” In other words, the fact that the USCIS has long been using an H-1B lottery is compelling.

The random process of the H-1B lottery is also fundamentally fair since it treats all timely-filed H-1B petitions identically. Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”. In fact, Congress has set forth a different standard.

An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification. There is nothing in the Congressional statute that favors employers who pay a greater wage. Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.

Comments

As this article points out, there is no legal authority for replacing the random lottery with selection based on salary, and, based on lottery results received in my office so far, I see no evidence of any attempt to have done that in this year's just completed lottery.

However, a related question is whether between now and the beginning of the new fiscal year on October 1, 2017, the Trump administration might try to change the regulations governing approval of H-1B petitions in order to deny petitions which are in compliance with current prevailing wage standards but still have a relatively low annual salary.